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The Iowa State Constitution, 2nd Edition by Pettys, Todd E (9th February 2018)

Part Two The Iowa Constitution and Commentary, Art.II Right of Suffrage

From: The Iowa State Constitution (2nd Edition)

Todd E. Pettys

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 16 January 2019

(p. 129) Article II  Right of Suffrage

Section 1.  Electors.

Every citizen of the United States of the age of twenty-one years, who shall have been a resident of this state for such period of time as shall be provided by law and of the county in which he claims his vote for such period of time as shall be provided by law, shall be entitled to vote at all elections which are now or hereafter may be authorized by law. The general assembly may provide by law for different periods of residence in order to vote for various officers or in order to vote in various elections. The required periods of residence shall not exceed six months in this state and sixty days in the county.

Subject to various restrictions imposed by federal law,1 states are free to decide for themselves who may vote in their elections. Responding to that circumscribed flexibility, Section 1 establishes voter-eligibility requirements (p. 130) concerning citizenship, age, and residence.2 Under the state’s first constitution, ratified in 1846, the franchise was limited to white males twenty-one years of age and older who had been Iowa residents for at least six months and who had resided in the county where they wished to vote for at least twenty days.3 The constitution of 1857 extended the required period of county residence to sixty days, but otherwise retained the 1846 requirements. Iowa voters expanded the franchise to non-white males in 1868, the same year that Iowa and the nation ratified the Fourteenth Amendment to the U.S. Constitution and thereby limited states’ ability to make racial distinctions among people within their jurisdictions.4 Women in Iowa did not obtain the right to vote until the U.S. Constitution’s Nineteenth Amendment was ratified in 1920. It was not until 1970—in an amendment aimed primarily at giving the General Assembly greater power to establish residency requirements—that Iowans removed the word “male” from Section 1, even though the Nineteenth Amendment had rendered that sex-based restriction inoperative half a century earlier.5

Many of the Iowa Supreme Court’s Section 1 cases have concerned disputes about residence. In early cases, the court equated residence with domicile, saying that both terms referred to the most recent place where two things coincided: one’s physical location and one’s intent to make that place one’s “fixed” home (Vanderpoel v. O’Hanlon, 1880).6 The General Assembly subsequently declared that, for voting purposes, a person’s residence “is the place which the (p. 131) person declares is the person’s home with the intent to remain there permanently or for a definite, or indefinite or indeterminable length of time.”7 With its use of the term “definite,” the legislature thereby expanded the definition of residence beyond the limits of domicile, to include circumstances in which a person temporarily makes a given place his or her home, but firmly intends to leave at a fixed time in the future, such as upon completing a college degree or fulfilling a contractual obligation at work (Paulson v. Forest City Community School District, 1976). The court has never indicated that the legislature’s broadened definition violates Section 1, and—given the court’s overall orientation, described below—it is unlikely ever to do so.

The Iowa Supreme Court has not provided a precise definition of the term “elections” as it is used here in Section 1, though the court has said that it may include more than the selection of public officials. In Taylor v. Independent School District (1917), for example, the court held that the term encompassed a decision by voters about whether to create a consolidated school district. The court has also indicated, however, that citizens do not have a right to vote for all public officials; some officials may be appointed, so long as those wielding the appointment power are themselves electorally chosen (State ex rel. Jones v. Sargent, 1910). The Iowa court has further held that primary elections—that is, elections to determine political parties’ nominees for an upcoming general election—are not “elections” within the meaning of Section 1 (State ex rel. Hatfield v. Carrington, 1922).8 The General Assembly has taken advantage of the resulting flexibility, such as by permitting a person to vote in a primary election even if he or she will not satisfy Section 1’s residence requirements until shortly before the upcoming general election.9

This section—together with Section 2 of Article I—gives voters the right to write in the names of their preferred candidates if those candidates’ names do not already appear on voters’ ballots (Barr v. Cardell, 1915).10

Although the General Assembly cannot alter the age, citizenship, and residence qualifications prescribed by Section 1, it can establish mechanisms—such as a system for requiring would-be voters to register—aimed at ensuring that an individual meets those qualifications (Edmonds v. Banbury, 1869). The Iowa Supreme Court’s attitude toward such legislation is heavily influenced by the court’s recognition that the right to vote, protected by Section 1 and other legal texts, is fundamental:

Statutory regulation of voting and election procedure is permissible so long as the statutes are calculated to facilitate and secure, rather than subvert or impede, the (p. 132) right to vote. Among legitimate statutory objects are shielding the elector from the influence of coercion and corruption, protecting the integrity of the ballot, and insuring the orderly conduct of elections. However, because the right to vote is so highly prized, these statutes must be construed liberally in favor of giving effect to the voter’s choice, and every vote cast enjoys a presumption of validity (Devine v. Wonderlich, 1978).

That orientation was already on display in 1863’s Morrison v. Springer, in which the court held that Section 1’s phrase “county in which he claims his vote” does not require that a person be physically present in his or her home county when voting, and that the legislature thus may devise ways in which Iowans serving in the military may cast their ballots while stationed in other jurisdictions.

When the General Assembly uses the term “elector” or “qualified elector” in legislation, courts presume that the legislation refers to those who possess the qualifications described in Section 1, regardless of whether those individuals have registered to vote (Piuser v. City of Sioux City, 1935). When the General Assembly uses the term “voter,” however, courts typically say that the legislation refers only to those who have successfully registered (Buchmeier v. Pickett, 1966). In at least one instance, legislation made clear that the term “qualified voter” referred to those who met Section 1’s requirements, even if they had not registered to vote (Piuser v. City of Sioux City, 1935).

Section 2.  Privileged from arrest.

Electors shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest on the days of election, during their attendance at such election, going to and returning therefrom.

Aside from some inconsequential changes in the wording of its final clause, Section 2 continues to stand in the same form that the delegates to the Territory of Iowa’s 1844 convention placed it. The provision gives voters the same kind of protection that U.S. Senators and Representatives enjoy under Article I, Section 6, of the U.S. Constitution, which declares that Senators and Representatives “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same.” Section 2 has never been the subject of reported appellate litigation.

Section 3.  From military duty.

No elector shall be obliged to perform military duty on the day of election, except in time of war, or public danger.

Like Section 2 before it, Section 3 reflects the high value placed on individuals’ right to vote. The provision’s text was borrowed almost verbatim from (p. 133) other states’ constitutions.11 It has never been the focus of reported appellate litigation.

Section 4.  Persons in military service.

No person in the military, naval, or marine service of the United States shall be considered a resident of this State by being stationed in any garrison, barrack, or military or naval place, or station within this State.

Section 4 has not been substantively altered since its initial drafting at the Territory of Iowa’s 1844 constitutional convention. In 1928’s Harris v. Harris—a divorce case in which Section 4 made a peripheral appearance—the Iowa Supreme Court explained that this provision is premised upon the fact that individuals serving in the military often have no control over where they live and thus often cannot meaningfully intend to establish their residency in Iowa. Although Section 4 has never been the focus of reported appellate litigation, it has been the focus of opinions issued by the Office of the Attorney General. That office has sensibly concluded that members of the military may vote while stationed in Iowa, so long as they meet the constitutional and statutory requirements that everyone else wishing to vote must meet.12 As Attorney General Richard Turner and Attorney General Lawrence Scalise both acknowledged on the occasions just cited, reading Section 4 as an outright ban on voting by those stationed in Iowa would bring the provision into conflict with the Fourteenth Amendment’s Equal Protection Clause as interpreted by the U.S. Supreme Court in Carrington v. Rash (1965). Section 4 merely declares that being stationed in Iowa is not itself sufficient to establish the Iowa residency that Section 1 of this article requires for would-be voters.

Section 5.  Disqualified persons.

A person adjudged mentally incompetent to vote or a person convicted of any infamous crime shall not be entitled to the privilege of an elector.

Iowa’s first constitution, ratified in 1846, denied the franchise to those convicted of “infamous crime[s]‌,” as well as to “idiot[s]” and “insane person[s].” The constitution of 1857 repeated that same formulation. Iowans amended Section 5 in 2008, striking the anachronistic language used to describe those with certain mental disorders and replacing it with a clause that speaks instead about persons “adjudged mentally incompetent.”

(p. 134) The provision concerning mental incompetence—both as currently framed and as written prior to 2008—has not been the subject of reported appellate litigation. With respect to what Iowans might have had in mind when first placing the terms “idiot” and “insane person” in Section 4, one finds a clue (albeit not a terribly helpful one) in the Iowa Code of 1851. The General Assembly there declared that, when used in any Iowa statute, the term “insane person” included “idiots, non-compotes, lunatics, and distracted persons.”13

Notice that, as written today, Section 5 speaks only to circumstances in which a person has been “adjudged mentally incompetent to vote.” A bare assertion by a medical professional, uttered outside the context of a legal proceeding, is not a sufficient basis for stripping a person (on mental-health grounds) of his or her right to vote. The adjudication requirement is consistent with the guidance that the Office of the Attorney General provided in 1985 when asked to explain what the now-abandoned terms “idiot” and “insane person” denoted. The office concluded that those terms “are not commonly understood with sufficient precision to articulate reliable criteria” and that adjudications should thus be central to the process of removing individuals’ voting rights.14 The General Assembly has declared that a court should find a person “incompetent to vote only upon determining that the person lacks sufficient mental capacity to comprehend and exercise the right to vote.”15

With respect to Section 5’s latter clause, the Iowa Supreme Court held in 1916 that an infamous crime was “[a]‌ny crime punishable by imprisonment in the penitentiary” (Blodgett v. Clarke). In more recent years, the court has focused on whether the crime at issue in a given case is a felony, although the court has wavered a bit along the way. Two cases dominate the field. The first, Chiodo v. Section 43.24 Panel (2014), featured a battle between Ned Chiodo and Anthony Bisignano to become the Democratic nominee for a seat in the state senate. Chiodo objected to Bisignano’s candidacy on the ground that Bisignano had been convicted for the second time of operating a motor vehicle while intoxicated, a crime carrying a possible punishment of up to two years in prison. Because Iowa law states that a person is eligible to hold public office only if he or she is eligible to vote,16 Chiodo argued that Bisignano was disqualified. Taking a fresh look at the phrase “infamous crime,” a plurality of the court rejected Blodgett, finding that it swept too broadly. The plurality declined to provide a precise definition of the phrase “infamous crime,” but said that “the crime must be classified as particularly serious, and it must be a crime that reveals that voters who commit the crime would tend to undermine (p. 135) the process of democratic governance through elections.” Focusing on the first of those two features, the plurality found that only felonies are sufficiently serious to fall within Section 5’s scope, and that Bisignano’s crime—an aggravated misdemeanor—thus was not infamous. Concurring in the judgment, Justices Mansfield and Waterman argued that a crime is infamous if and only if it is classified as a felony. Two years later, in Griffin v. Pate (2016)—a case asking whether a felony drug offense was an infamous crime—the Mansfield-Waterman view became law. With Justice Zager, those two justices joined an opinion authored by Chief Justice Cady (who also had authored the plurality opinion in Chiodo), placing heavy weight on the fact that, in 1994, the General Assembly enacted a statute defining an infamous crime as any crime classified as a felony by state or federal law.17 The court held that, while the constitutional meaning of the phrase “infamous crime” might evolve in a different direction in the future, there was not yet sufficient evidence of a community standard contrary to the legislature’s judgment that all felonies should be deemed infamous crimes.

In 1976, Attorney General Richard Turner concluded that—together with Article III, Section 1 (which ensures the separation of powers) and Article IV, Section 16 (which gives the governor, rather than the legislature, the power to issue pardons)—Section 5 bars the legislature from reinstating the electoral rights of those who have been convicted of infamous crimes.18

Section 6.  Ballot.

All elections by the people shall be by ballot.

Section 6 prescribes the means by which state authorities are to solicit voters’ choices at elections, although, as we shall see, the provision’s requirements are not as rigid as they might first appear. At the Territory of Iowa’s 1844 convention, the Committee on Suffrage and Citizenship proposed that all elections be by ballot. Francis Gehon suggested that elections instead be held “viva voce” (by voice), but the delegates rejected that idea by a vote of 24 to 44. By roughly the same margins, they rejected John Taylor’s proposal that the General Assembly be given the power to prescribe the manner of voting (25 to 45) and William Galbraith’s proposal that Section 6 be deleted entirely (20 to 49).19 At the 1846 convention, Mahaska County’s Stephen Shelleday (who also had served at the 1844 convention) revived the proposal that Gehon had made two years earlier, (p. 136) but the delegates rejected it by a vote of 7 to 22.20 At the 1857 convention, Dubuque County’s John Emerson revived Gehon’s proposal once again—and the delegates rejected it once again, this time by an unrecorded margin.21

Does Section 6 require the use of ballots whenever voters’ preferences are officially solicited, or does the term “elections” here have some narrower meaning? In 1891’s Seaman v. Baughman, the Iowa Supreme Court held that Section 6 did not apply—and that casting votes by raising hands or rising to a standing position was thus permissible—when the residents of a district township gathered to vote on whether to impose a property tax for building a new schoolhouse. The court found that, as used in Section 6, the term “elections” ordinarily refers to “a choice of persons for public offices.” In its brief ensuing discussion of legislative intent, however, the court appeared to indicate that the General Assembly may create ballot-necessitating Section 6 elections concerning a broader range of matters.

When Section 6 does apply, the provision’s use of the term “ballot” does not compel state authorities to solicit voters’ choices using the same balloting techniques that were used when Iowans ratified the constitution in the mid-nineteenth century. Finding that a county could deploy voting machines on Election Day, the court explained in 1906’s United States Standard Voting Machine Co. v. Hobson that Section 6 “was intended to require and protect the secrecy of the ballot with the general purpose of guarding against intimidation, securing freedom in the exercise of the elective franchise, and reducing to a minimum the incentives to bribery.” So long as a voting machine protects voters’ privacy, therefore, Section 6 does not bar its use. Section 6 permits government officials to deploy voting machines at general and special elections alike (McLeland v. Marshall County, 1925). Attorney General Milton Remley similarly concluded in 1900 that the central purpose of this provision is to ensure that “all elections by the people shall be by that system which enables the voter to express his choice without it being known for whom or what he has voted.”22

Section 7.  General election.

The general election for state, district, county and township officers in the year 1916 shall be held in the same month and on the same day as that fixed by the laws of the United States for the election of presidential electors, or of president and vice-president of the United States; and thereafter such election shall be held at such time as the general assembly may by law provide.

(p. 137) Section 7 has appeared in the Iowa Constitution in two different iterations. The first came in 1884, when Iowa voters declared that state and local elections “shall be held on the Tuesday next after the first Monday in November.” In 1916, Iowans amended the provision by placing it in the form it takes today. The provision has not been the focus of reported appellate litigation.(p. 138)

Footnotes:

1  See, e.g., U.S. Const. amend. XV (stating that the right to vote cannot be denied based on “race, color, or previous condition of servitude”); id. amend. XIX (stating that the right to vote cannot be denied “on account of sex”); id. amend. XXIV (stating that the right to vote in presidential and congressional elections cannot be denied “by reason of failure to pay any poll tax or other tax”); id. amend. XXVI (stating that the right to vote cannot be denied “on account of age” to any citizen eighteen years of age or older); Harper v. Virginia State Board of Elections (1966) (holding that the Fourteenth Amendment’s Equal Protection Clause bars conditioning the right to vote in state elections upon “wealth or affluence or payment of a fee”).

2  For an early-twentieth-century discussion of the history of voting rights in Iowa, see Carl H. Erbe, “Constitutional Provisions for the Suffrage in Iowa,” 22 Iowa Journal of History & Politics 163 (1924).

3  Iowa Const. of 1846, art. III, § 1.

4  U.S. Const. amend. XIV, § 1.

5  For a discussion of the lengthy battle in Iowa to secure women’s right to vote, see Part I.

6  Vanderpoel concerned the residence of a student at the University of Iowa. The court held that, because the student did not affirmatively intend to remain in Johnson County after he graduated, he had not become a resident of that county. The General Assembly subsequently adopted a standard that is more favorable to college students, allowing them to choose between voting in the county where their college is located and voting in the Iowa county of their more permanent residence. Iowa Code § 48A.5A(5). There is evidence that this legislation is in accord with the preferences of the delegates to the 1844 convention. Those delegates rejected James Gower’s motion to include a provision barring college students from voting in the county where their college was located if that county was not the same as the one in which they had previously established their residence. 1844 Journal, supra Article I, note 3, pp. 59–60. This was apparently a subject of some interest in the Gower family. James’s son Robert served as a delegate at the 1857 convention, where he proposed declaring that a person who comes to Iowa for the purpose of attending “any seminary or institution of learning” be unable to acquire an Iowa residence for voting purposes “in consequence of being such student.” He said that his proposal was inspired by experiences in his prior home state of Maine—a state that had adopted a constitutional provision aimed at preventing out-of-state students from wielding a dominant influence in local elections. See Maine Const. of 1820, art. II, § 1. The delegates narrowly rejected Gower’s proposal. 1857 Debates, supra Article I, note 3, vol. 2, p. 869.

7  Iowa Code § 48A.5(2)(b).

8  Chapter 43 of the Iowa Code defines and regulates primary elections.

9  Iowa Code § 43.91.

10  See also Iowa Code §§ 49.31(5), 49.99 (making arrangements for write-in votes).

11  See, e.g., Maine Const. of 1820, art. II, § 3; Mich. Const. of 1835, art. II, § 4.

12  See, e.g., Op. Iowa Att’y Gen., 1972 WL 262447 (Sept. 27, 1972) (replying to Richard Kemming); Op. Iowa Att’y Gen., 1966 WL 155331 (Apr. 12, 1966) (replying to Edward Samore).

13  Iowa Code § 26 (1851).

14  Op. Iowa Att’y Gen., 1985 WL 549204 (June 19, 1985) (replying to Louise Whitcome).

15  Iowa Code § 633.556(1).

16  Iowa Code §§ 39.26, 39.3(6).

17  Act of May 16, 1994, ch. 1180, § 1, 1994 Iowa Acts 538 (codified at Iowa Code § 39.3(8)); Act of May 11, 1994, ch. 1169, § 7, 1994 Iowa Acts 418 (codified at Iowa Code § 48A.6).

18  Op. Iowa Att’y Gen., 1976 WL 375888 (Mar. 11, 1976) (replying to Clay Spear).

19  1844 Journal, supra Article I, note 3, pp. 57–58.

20  1846 Journal, supra Article I, note 3, p. 52. Some sources spell his last name “Shelleday,” while others spell it “Shelledy.” I follow here the spelling used in the 1844 Journal and the 1846 Journal.

21  1857 Debates, supra Article I, note 3, vol. 2, p. 869.

22  Op. Iowa Att’y Gen., 1900 WL 165748 (Mar. 21, 1900) (replying to William Hawk).